A unique feature of the Article 81 statute is a provision which grants a Court Evaluator (CE), an individual independently selected by the court, both the authority and the flexibility to investigate and report on the information contained in the guardianship petition. Mental Hygiene Law § 81.09. If selected as a CE, you can only accomplish this important facet of the process with diligent planning and efficient execution given the extent of the facts at issue and the limited amount of time available for a proper investigation.
As a general matter, if a petitioner is requesting the court to appoint a guardian, the scope of the relief requested is far-reaching and must be carefully balanced by the court against the rights and interests of the Alleged Incapacitated Person (AIP). This can only be done by a fair and thorough assessment of the often complicated factual predicates in the petition. And the CE is the person relied upon by the court to fulfill this important task.
For this reason, and before accepting an assignment as a CE, you should first determine whether you have the time available to get the job done in a responsible manner. In addition, you must be prepared to act immediately because, as a practical matter, you just will never have enough time to get done all the tasks required. At the time you receive the appointment, make sure you also obtain the underlying petition, the signed order to show cause, and the contact information for all relevant participants in the proceeding. Once you receive this preliminary information, review the petition thoroughly, formulate an investigative plan and send out an introductory email to the necessary party to schedule an appointment with the AIP.
An interview with the AIP should be the first investigative task. And it does not matter if the AIP is reported to be uncommunicative, unconscious or unavailable; at home or in a nursing home facility. You can often obtain helpful information by actually observing the AIP, that individual’s living conditions, standard of care, and surroundings – whether or not the AIP actually speaks to you. If the petition alleges facts demonstrating the AIP is ill and/or living in unsanitary conditions, it is important to take all necessary precautions. If Adult Protective Services (APS) is involved, the assigned case worker can be tremendously helpful and, generally, will make himself/herself to accompany you on a visit with the AIP.
As appropriate and as a practical matter, you should take every effort to mediate the concerns raised by the participating parties and interested persons involved in the proceeding, obtain consensus as to what is relevant and helpful, and – above all – seek to mitigate any further distress, injury or adverse consequences to the AIP. This may include taking immediate protective action as permitted under the statute and/or moving before the court for any injunctive relief deemed appropriate. For example, if there is information suggesting financial exploitation, you can immediately safeguard ATM cards and checkbooks, and move immediately by order to show cause to freeze and limit access to the effected financial accounts. Follow the money and those with access to the money. Very often, this can only be effectively accomplished by obtaining social security numbers of all involved, birth dates and account numbers. Use your best efforts to obtain this information as soon as possible.
Individuals involved in financial exploitation can be highly manipulative, cunning and deceptive. Many are incapable or unable to understand or accept that their actions are wrong. More often than not the wrongdoer will either not cooperate or stop cooperating when they realize you are looking at the financial transactions. Without social security numbers, birth dates and other information it becomes extremely difficult to trace funds. While financial account numbers are certainly extremely helpful, most exploited funds are moved around quite a bit and without the offender’s social security number, the funds become extremely difficult to trace.
It is not uncommon for an AIP to be financially exploited by a family member or caretaker, often facilitated by authority granted to this individual by the AIP in a power of attorney (POA) This authority, whether properly granted or not, can be revoked by the guardianship court if there is a finding that the AIP’s property interests have been harmed or are at risk of harm by an agent under authority granted in a POA. In addition, an agent does not have the right or authority to misappropriate an AIP’s funds because this conduct fundamentally betrays a fiduciary duty of loyalty owed by the agent to the principal which includes his or her best interests.
Additionally, the civil process - as opposed to the criminal process – can offer a greater opportunity to recoup the funds and hold those responsible accountable. Where the authority granted to an agent in a POA may offer a defense to a criminal charge requiring a finding that the agent acted intentionally and beyond a reasonable doubt, this defense is not available nor relevant in the civil context. In the civil context, the agent must always act as a prudent fiduciary with a duty of loyalty and fidelity to the best interests of the principal. An agent will be hard pressed to prove that he or should acted in the best interests of an AIP when misappropriating an AIP’s funds for self-serving benefit and interests.
In sum, and as a CE, you should first and foremost act to protect the integrity of the court and the best interests of the AIP. You should formulate your opinions through your own observations and assessments. Remember things are not always as they may be described or as they may first appear. And while there is an understandable inclination to accept representations made to you by persons known to you, such as petitioner, or petitioner’s counsel, or counsel for the AIP, the integrity of your assessments requires independent assessments. And this takes time and planning.
Act worthy of the trust granted to you in this process.